No. 13452 

IN THE SUPREIgE COURT OF THE STATE OF MONTANA 

1977 

IN THE MATTER OF THE ADOPTION OF 

BABY GIRL HALL, a Minor Child 

DONNA HALL NAGY, 

Appellant, 

GLEN E. WILLIAMS and DOLORES 

LORRAINE WILLIAMS, 

Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record: 

For Appellant: 

Smith, Emmons, Baillie and Walsh, Great Falls, 

Montana 

Robert J. Emmons argued, Great Falls, Montana 

For Respondents: 

James W. Zion argued, Helena, Montana 

Thomas E. Boland argued for Baby Girl Hall, Helena, 

Montana 

Submitted: January 13, 1977 

Decided: JUL_ ,l l(.~n 

Filed: ,gUe - 1 19?t;i' 

7aiwu.Q 8. yiG w Y clerk 
Hon. Gordon Bennett, District Judge, sitting for Chief Justice 

Paul G. Hatfield, delivered the Opinion of the Court. 

This is an appeal from a final order of the district court, 

Cascade County, denying a petition for annulment of an adoption 

decree and, in the alternative, for a writ of habeas corpus. 

Petitioner was born January 21, 1954, and gave birth to the 

child involved in this litigation on June 18, 1970. On July 17, 

1970, the district court decreed the adoption of the child by 

respondents, having found the child was abandoned by its natural 

parents. In June 1975, petitioner discovered her child had 

purportedly been adopted by respondents and was living in their 

home. She filed her petition November 4, 1975. Respondents moved 

to quash. 

Pursuant to a written stipulation filed by the parties, the 

district court on November 14, 1975, issued its order determining, 

inter alia, that the adoption decree was invalid. It found a lack 

of due process because no notice was given the natural parents, and 

that consent had not been waived by abandonment for the required 

period of one year, in view of the fact the child was only 24 days 

old at the time of the adoption, 

In the same order, and again by stipulation of the parties, the 

court directed the local welfare office to investigate the living 

circumstances and parental qualifications of petitioner and respondents and make its recommendation as to where the child should best 

be placed. The report was to be made to the court with counsel for 

both parties present and allowed to cross-examine as to its contents. 

After the filing of the report and an adversary hearing on 

the question of the best interests of the child, the court on March 
29, 1976, issued its findings of fact, conclusion of law and order, 

wherein it confirmed its previous conclusion that the adoption 

decree was invalid for lack of notice and the absence of consent 

by abandonment. The court then concluded petitioner was guilty of 

laches and was estopped from maintaining her petition because she 

could have commenced her action upon reaching majority on July 1, 

1973, under the provisions of Art. 11, Section 14, 1972 Montana 

Constitution. It also concluded it was in the best interests 

of the child to remain in respondents' home. The court denied the 

petition and granted the motion to quash. 

We would not disturb the stipulation of the parties and the 

conclusion of the district court pursuant thereto that the adoption 

decree is invalid, as there is no request or basis presented for 

doing so. The decree is, however, not only invalid, it is void 

for all purposes. It is conceded no notice was given the natural 

parents. More than fifty years ago, this Court recited with 

approval the universally accepted general rule that notice to 

natural parents in these cases is indispensable to jurisdiction; 

if jurisdiction is not thus obtained there can be no judicial 

determination, and any such purported determination is void. State 

ex rel. Thompson v. District Court, 75 Mont. 147, 151, 242 P. 959. 

This Court has not deviated from this rule. See: Bascom v. Carpenter, 126 Mont. 129, 136, 246 P.2d 223, recently reinforced by 

the United States Supreme Court in Armstrong v. Manzo, 380 U.S. 545, 

85 Sect. 1187, 14 L ed 2d 62. Nothing appears in this case that 

would remove it from the application of the rule. In 1921 this 

Court in Lamont v. Vinger, 61 Mont. 530, 546, 202 P. 769, adopted 

from the landmark case of Pennoyer v. Neff, 95 U.S. 714, 728, 

24 L Ed 565, the fundamental principle that: 
I I A judgment void when rendered will always remain void. 

The validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what 

may occur subsequently ." 

This principle remains undisturbed, here and elsewhere. It requires that we give a void decree no effect whatever at any time 

and view it as a nullity for all purposes. Thus it is the limited 

function of this Court to declare there never was a legally 

cognizable adoption decree in this case. That being so, the 

equitable doctrines of laches and estoppel cannot be applied to 

save the non-existent decree or. to implement it in any way. 

It is also conceded that no consent was given by the natural 

parents, nor was there a valid exception to the consent requirement 

of ~ontana's statute, section 61-205, R.C.M. 1947. We have required 

strict compliance with that statute (Adoption of Biery, 164 Mont. 

353, 522 P.2d 1377), but have not yet found failure to comply with 

it jurisdictional, as have courts in other jurisdictions. See 

for example: Franklin v. Biggs, 14 Or.App.450, 513 P.2d 1216,1217; 

2 C.J.S. Adoption of Persom, 551, p. 470, and cases cited therein. 

We see no reason for relaxation of the standard in this case and 

would set aside the decree, as we did in Biery, if it had any 

validity in the first place. 

Petitioner sought not only annulment of the adoption decree 

but the return of her child upon a writ of habeas corpus. Apparently pursuant to the latter petition, and upon stipulation of the 

parties, a full hearing was provided in the district court on the 

question of the "best interests of the child". This being the basic 

criterion by which custody is determined the hearing may be considered 

a cugtody hearing, held with the consent of both parties. On the 

basis of this hearing, the court concluded as a matter of law that 

it was in the best interests of the child to leave it with respondents. Having so concluded, the court granted responsents' motion 
to quash and, in effect, granted custody to them. 

We cannot quarrel with the court's conclusion as to the best 

interests of the child. The transcript reveals the case was 

thoroughly investigated by the county welfare department and its 

report was aired with equal thoroughness at the hearing. There 

is an abundance of substantial credible evidence to support the 

court's conclusion. Thus we find no abuse of discretion by the 

district court and must affirm its conclusion. Adoption of 

Biery, supra, and cases cPted therein. 

For the above reasons, the adoption decree involved herein 

should be annulled and permanent custody of the child decreed in 

respondents. The cause is remanded to the district court for 

entry of its decrees in accordance with this opinion. 

Judge. 

We Concu /- 

Justices. 
Mr. Justice Daniel J. Shea concurring in part and dissenting in 

part: 

I concur with that portion of the majority decision voiding 

the adoption decree, but I dissent on its decision granting 

permanent custody to the adoptive parents. For all practical 

purposes this decision forecloses the natural mother from ever 

successfully petitioning to obtain custody of her daughter. She 

can have no consolation in winning her case but losing her child. 

I do not believe that the result would have been the same 

in the district court if the district court had voided the 

adoption decree, for in that case the adoptive parents would not 

have had any legal claim to the child. While the court would 

not have been bound to immediately give custody to the natural 

mother, the adoptive parents would have had no legal basis for 

then obtaining permanent custody of the child. It is clear 

however, that the district court recognized this problem for it 

held that although the adoption decree was void, it really was 

not void. The reason was that the natural mother was guilty of 

laches and therefore had no legal basis to set the adoption aside. 

However, by upholding the adoptive parents1 claim of laches the 

court did not have to reach a decision on the "best interests" of 

the child, for at that point the natural mother had no legal 

right to be heard. She was standing before the court as a 

stranger trying to obtain custody of a child that was no longer 

hers. Certainly the court was not going to award permanent 

custody to a stranger. But this Court by overruling the claim 

of laches as applied to a void adoption decree, held the ;natural 

mother was not a stranger, and she was wronged by the adoptive 

parents participating in the filing of a false adoption petitkon. 

But in the same breath the Court has deprived the natural mother 
from ever obtaining legal custody of her daughter. The provisions 

of the Uniform Marriage and Divorce Act, applicable to further 

district court proceedings in this case<, place an impossible 

burden on the natural mother. 

The Uniform Marriage and Divorce Act went into effect 

on January 1, 1976 and pursuant to section 48-341(4) R.C.M. 1947, 

any further district court proceedings in this case must be under 

this Act. Section 48-341(4) provides: 

"In any action or proceeding in which an 

appeal was pending or a new trial was ordered 

prior to the effective date of this act, the 

law in effect at the time of the order sustaining 

the appeal or the new trial governs the appeal, the 

new trial, and any subsequent trial or appeal." 

Here, the trial took place in March, 1976 and an appeal was filed 

on April 27, 1976. Therefore, further proceedings in this case 

must be under this Act. 

Under Section 48-339(1), R.C.M. 1947, a petition to obtain 

custody of a child (absent extenuating and emergency situations) 

can be filed only once in a two year period. Th,is means the 

mother must endure a substantial waiting period before she can 

file a custody petition. But even if she later filed a petitkon, 

her efforts would most likely be doomed to failure because she 

must overcome the heavy burden of proof placed on her by the Act. 

To be entitled to a hearing under section 48-339, R.C.M. 

1947, the natural mother must file an affidavit or sworn petition 

alleging evidentiary facts (section 48-340, R.C.M. 1947) that the 

child's "physical, mental, moral, or emotional health" is being 

harmed in her present home. Because all agree that the adoptive 

parents have been good parents, it would indeed take a creative 

mind to allege sufficient evidentiary facts that would entitle 

the natural mother to a hearing. Moreover, since the trial court 

has already determined the "best interests'' of the child are with 
the adoptive parents, upon another hearing the court would be 

required to retain them as custodians unless "the child's 

present environment endangers seriously his physical, mental, 

moral, or emotional health, and the harm likely to be caused by 

a change of environment is outweighed by its advantages to him." 

Section 48-339{2)(c). Thus we have a situation where the stated 

purpose of the Uniform Marriage and Divorce Act of keeping the 

child in a stable, permanent environment is depriving the natural 

mother from ever obtaining custody of her child. his is not a 

just result, nor is it necessarily, the long run, the right 

decision for the child. 

The natural mother lives only a few blocks from her child, 

but only knew of her whereabouts just a short period before 

filing the petition in district court to annul the adoption 

decree. The child does not know she has been adopted. However, 

even assuming the adoptive parents have been granted permanent 

custody it would appear the natural mother now has a right to 

petition for reasonable visitation rights pursuant to section 48- 

337(1), R.C.M. 1947, which provides: 

"A parent not granted custody of the chi 

is entitled to reasonable visitation rights 

unless the court finds, after a hearing, that 

visitation would endanger seriously the child 

physical, mental, moral, or emotional health. 

It would seem most likely the child will now find out she has , -, - 

been adopted and the identity of her natural mother. Yet the 

mother will never have a meaningful opportunity to obtain the 

custody of her daughter. 

In setting aside the adoption decree but still leaving 

permanent custody in the adoptive parents, the Court relies on 

Adoption Of Biery, 164 Mont. 353, 522 P.2d 1377, but I feel 

that reliance is misplaced. In Biery the natural mother was 

served with process before the adoption and participated 
full hearing to determine the "best interests" of the child. Also, 

the adoptive parents in Biery had actual custody of the child 

before the adoption. The reason for setting aside the adoption 

in Biery was because there was no finding by the district court 

that the mother had abandoned the child for a period of one year. 

A statute required the adoptive parents to prove the mother did 

not support the child for a one year period and she had the 

ability to support the child during that period. Section 61-205, 

R.C.M. 1947. The adoption was set aside without prejudice. The 

facts are very different in the instant case. 

The natural mother was a minor when she signed a consent 

form to have her child adopted. No guardian ad litem was appointed 

to represent her interests. She was not served with process in 

the guardianship proceedings. The petition to adopt was false on 

its face. It alleged abandonment, in which case the abandonment 

must have existed for a period of at least one year. Section 61- 

205,R.C.M. 1947. However, the petition alleged the child was 

born on June 18, 1970, and the petition was filed on July 17, 1970, 

just 24 days after the child's birth. Still the court approved 

the adoption. The entire proceedings were devoid of even the 

rudiments of due process. 

The effect of the Court's decision is that due process when 

applied to child custody cases is meaningless, for it is custody 

of the child that is important. If a couple, however well 

intentioned, can acquire permanent custody of a child in the 

manner done in this case, then parental rights are meaningless. 

In effect, this Court is holding that permanent custody of a child 

can be acquired by a hybrid form of adverse possession and it does 

not matter that the initial possession was acquired by illegal 

means. 
I ~~oulcl vo~u the entire pr?ocezdin&s drld allow the adoptive 

uaren ts temporary custody until such time as satisfactory arrangements could be worked out for the transfer of permanent custody 

so the natural mother.